01971894
09-11-2000
Joe C. Purl, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Joe C. Purl v. United States Postal Service
01971894
September 11, 2000
.
Joe C. Purl,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01971894
Agency No. 1-H-391-1026-94
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
discrimination based on race (White), sex (male), age (DOB: 1/12/51),
and physical disability (muscular dystrophy), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<2> For the following reasons,
the FAD is AFFIRMED IN PART and REVERSED IN PART.
ISSUES PRESENTED
The issues on appeal are whether the agency discriminated against
complainant on any of the above-cited bases when: (1) the agency delayed
granting his request for a temporary light-duty assignment; and (2) he was
required to take a fitness-for-duty (FFD) examination at his own expense.
BACKGROUND
The record reveals that complainant, a mailhandler at the agency's
General Mail Facility in Jackson, Mississippi, submitted medical
information from his personal physician indicating that he was unable to
perform his duties from February 25, 1994 through April 7, 1994, due to
complications associated with his muscular dystrophy. On or about March
21, 1994, complainant submitted a request for temporary light duty to
begin April 8, 1994. The request was accompanied by documentation from
complainant's personal physician stating that while complainant could
return to work as of April 8, 1994, he would be subject to the following
medical restrictions: no climbing, kneeling, or reaching above the
shoulder; no lifting or carrying in excess of twenty pounds; maximum
four hours per day standing, walking, bending/stooping, or twisting;
and maximum two hours per day pulling/pushing.
By letter dated April 16, 1994, the Senior Safety Specialist (SS) advised
complainant that because his physician had described his condition
as "indefinite/chronic" on the light duty request form, complainant's
options were either to request permanent light duty in accordance with his
collective bargaining agreement, or to request disability retirement. The
agency apparently regarded this communication as a denial of complainant's
initial request for temporary light duty. See Record of Investigation
(ROI), Affidavit C at A-13. According to the SS, she then spoke with
complainant by telephone on April 19, 1994, and explained that requests
for permanent light duty must be accompanied by medical documentation
from a doctor chosen by the agency,<3> whose name she provided. She
also informed complainant that such documentation must be obtained at
the expense of the employee requesting accommodation. ROI, Affidavit
C at A-5.b. Based on these communications, the SS claims the agency
"didn't send [complainant] for an FFD," but rather "requested medical
documentation." Id. at A-22.
Complainant subsequently obtained an examination from the agency's
designated physician, who concurred with complainant's personal
physician's assessment that complainant could return to work consistent
with the medical restrictions outlined in his temporary light duty
request. At the same time, complainant submitted to the agency an
additional medical form from his personal physician with a revised
"expected duration" of six months for the symptoms at issue, which the
agency apparently construed as a second request for light duty. See
ROI Exhibit 13; Affidavit A at A-33. By letter dated June 9, 1994,
complainant was granted temporary light duty from June 9, 1994 through
July 7, 1994. See ROI Exhibit 14.
Complainant filed a formal EEO complaint on August 22, 1994, alleging
that the agency had discriminated against him as referenced above.<4>
At the conclusion of the investigation, complainant was provided with a
copy of the investigative report. Complainant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ), but then withdrew the request. The agency's FAD found no race,
sex, or age discrimination, concluding that complainant was not treated
differently than similarly-situated applicants for light duty. With
respect to complainant's disability discrimination claim, the FAD
concluded that any delay in granting complainant's request for light
duty did not constitute a denial of reasonable accommodation because
"[p]roviding [complainant] with a temporary light duty assignment when it
was unsure of [his] condition could have possibly resulted in the agency
being held liable for any injury [complainant] might have sustained due
to the work [he was] assigned."
On appeal, the agency stands on the record and requests that the
Commission affirm its FAD. Complainant has not submitted any contentions
on appeal.
ANALYSIS AND FINDINGS
Based on a careful review of the record, we find that the agency
correctly concluded complainant has not established race, sex, or
age discrimination, for the reasons set forth in the FAD. However,
as explained below, we further find that the agency violated the
Rehabilitation Act when it failed to afford complainant a light-duty
assignment between April 8, 1994 and June 9, 1994, and when it required
him to pay for his FFD examination.
The FAD found that complainant was an "individual with a disability"
within the meaning of the Rehabilitation Act, but did not address whether
or not complainant is a "qualified individual with a disability." We
review both questions as a threshold matter, and conclude that complainant
satisfies the relevant standard.
As the agency concedes, FAD at 7, complainant is an "individual with
a disability." The undisputed evidence establishes that at the time he
requested accommodation, complainant had significant physical impairments
as a result of his muscular dystrophy which, inter alia, substantially
limited his ability to care for himself. Specifically, in his March 21,
1994, letter in support of complainant's light duty request, complainant's
physician stated:
[Complainant] has a history of muscular dystrophy, primarily involving
the shoulder and hip girdle musculature. This has caused a progressive
muscular wasting and weakening to the point where he is having difficulty
performing his usual daily activities, including feeding and dressing
himself and taking care of his personal needs.
ROI Exhibit 4; see also Exhibits 5 (medical certificate for return to
work April 8, 1994) and 6 (light duty request form). Further, complainant
is a "qualified" individual with a disability because at the time of
the requested accommodation he could perform the essential functions
of his position with accommodation. Complainant attests that when the
agency finally permitted him to return to work on June 9, 1994, he was
able to and did perform his duties, while sitting four hours per day
(ROI Affidavit A at A-40), and the manager of processing does not dispute
this (ROI Affidavit B at A-19). See also ROI Exhibit 14. Accordingly, we
conclude that complainant is a "qualified individual with a disability"
under the Rehabilitation Act, and was therefore entitled to reasonable
accommodation absent undue hardship to the agency.<5>
Delay in Providing Light Duty
Based on our review of the record, we conclude that the agency's
two-month delay in granting light duty to complainant constitutes a
denial of reasonable accommodation. The SS asserts that when submitting
his March 21, 1994 request for temporary light duty, complainant "used an
obsolete form . . . Rather than delay the process, the form was processed
[as a request for permanent light duty.]" ROI Affidavit C at A-13. The
SS states that the request, construed as one for permanent light duty,
was denied because "[d]ue to the heavy nature of mail handler work,
and standing required, [the manager] stated that no mail handler duties
were available for indefinite-chronic duration within [complainant's]
restrictions." ROI Affidavit C at A-12. see also Exhibit 6. To the extent
the agency thus contends that complainant's initial request for temporary
light duty was denied because his doctor's assessment made it appear
that his condition was permanent rather than temporary, the agency
cannot avoid its accommodation obligations under the Rehabilitation
Act in this manner. Requests for accommodation do not need to be in
any particular form in order to trigger the employer's obligation under
the ADA to commence the interactive process of clarifying and assessing
the request. See EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the Americans With Disabilities Act, Number
915.002 (March 1, 1999) questions 2, 3, 5. Notwithstanding a generalized
assertion in the SS's affidavit that no "permanent" light duty position
was available, the agency has provided no explanation of why complainant
was not provided with a temporary light duty position at the time of his
initial request, pending a determination regarding whether permanent
light duty was available. The manager of district operations attested
that the manager of processing "did ask me if light duty was available
on tour three and I told him the heavy hammer operator or traying BBM
letters." ROI, Affidavit H at A-4. Complainant was on tour one. Id
. Although the agency asserts that the collective bargaining agreement
limited light duty assignments to those within an employee's own craft,
the record reveals that the union president wrote on complainant's
initial temporary light duty request form that "[t]here is (sic) light
duties assignment for the mailhandlers craft as any other craft." ROI
at Exhibit 6. The record contains no evidence regarding whether or not
complainant was qualified to perform these light duty positions. Moreover,
the record contains no objective evidence to demonstrate that the agency
actually conducted a search for vacant positions, whether light duty
or otherwise, at other facilities to which complainant could have been
reassigned. See Flowers v. United States Postal Service, EEOC Appeal
No. 0198487 8 (September 9, 1999); Lowery v. United States Postal Service,
EEOC Appeal No. 01961852 (October 31, 1997).
Further, to the extent the agency contends that complainant's initial
request for light duty was denied because he was seeking light rather than
limited duty, this distinction has no bearing on the agency's duties under
the Rehabilitation Act.<6> "[A]n employer may not avoid its obligation
to accommodate an individual with a disability simply by asserting that
the disability did not derive from occupational injury." Bradley v. United
States Postal Service, EEOC Appeal No. 01962747 (October 22, 1998) (citing
EEOC Enforcement Guidance on Workers' Compensation and the ADA (September
3, 1996)). While the Rehabilitation Act does not require an employer
to create a light duty position as an accommodation, it does require an
employer, absent undue hardship, to accommodate a qualified individual
with a disability by restructuring a position through redistribution
of marginal functions which he cannot perform because of disability,
or by reassigning him to an equivalent existing vacancy for which he
is qualified. Id. ; see also Ignacio v. United States Postal Service,
EEOC Petition No. 03840 005 (September 4, 1984), aff'd, 30 M.S.P.R. 471
(Spec. Pan. February 7, 1986). "If an employee with a disability who
is not occupationally injured becomes unable to perform the essential
functions of his/her job, and there is no other effective accommodation
available, the employer must reassign him/her to a vacant reserved light
duty position as a reasonable accommodation if (1) s/he can perform its
essential functions, with or without reasonable accommodation; and (2)
the reassignment would not impose an undue hardship." EEOC Enforcement
Guidance on Workers' Compensation and the ADA (September 3, 1996) at
question 28.
Finally, the FAD erroneously concluded that the agency acted "within
the bounds of reasonableness" in denying complainant's initial light
duty request because his physician's letter in support of the request
stated that the "type of activity [complainant] is performing at work
is aggravating his symptoms of muscular dystrophy and has created a
situation where he has a great deal of difficulty maintaining any type
of consistent physical activity." ROI at Exhibit 4, page 2. The FAD
found that based on this information, the agency could request "that
[complainant] provide additional information in order to clarify [his]
medical restrictions in order to determine exactly what type of light-duty
assignment was appropriate," and also that "[p]roviding [complainant] with
a temporary light duty assignment when it was unsure of [complainant's]
condition could have possibly resulted in the agency being held liable
for any injury [complainant] might have sustained due to the work [he]
was assigned."
To the contrary, the record establishes that the sole reason complainant's
light duty request was initially denied was that purportedly no light
duty positions were available for someone with an indefinite condition,
rather than because of a concern about whether complainant was fit
for duty. See ROI Affidavit C at A-12 and A-13; Affidavit B at A-9
and A-10. There is no evidence that the relevant management officials
denied complainant's initial light duty request because of uncertainty
regarding whether he could safely perform his duties. Moreover, the
record contains no evidence demonstrating that the agency conducted the
requisite individualized assessment, or that a light duty position posed
any risk of particular injury. See Kahout v. United States Postal Service,
EEOC Appeal No. 01954900 (June 19, 1997). Therefore, the agency has not
met its burden to demonstrate that the delay in providing complainant
light duty was warranted.
Fitness for Duty Examination
As noted above, complainant's request for light duty constituted a request
for reasonable accommodation under the Rehabilitation Act. The agency's
position is that a review by the agency's physician of choice was required
in order to process complainant's light duty request, and that "when an
employee provides requested medical documentation to support absence or
accommodation, it is at [the] employee's expense." ROI Affidavit C at
A-8.
An employer may require "an individual to go to an appropriate health
professional of the employer's choice if the individual provides
insufficient information from his treating physician (or other health
care professional) to substantiate that he has a disability and needs a
reasonable accommodation." See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans With Disabilities
Act, Number 915.002 (March 1, 1999) at question 7. However, "[i]f an
employer requires an employee to go to a health professional of the
employer's choice, the employer must pay all costs associated with the
visit(s)." Id . Thus, even assuming arguendo that the agency properly
could require complainant to attend an examination by its chosen health
professional in these circumstances, the agency erred in requiring
complainant to pay for the examination at issue.
CONCLUSION
Accordingly, after a careful review of the record, including arguments and
evidence not discussed in this decision, the FAD is affirmed with respect
to the finding of no race, sex, or age discrimination, but is reversed
with respect to complainant's claim of disability discrimination. Based on
the foregoing analysis, we hereby find that complainant was discriminated
against based on disability. The agency is ORDERED to provide the relief
specified below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, if complainant remains employed by the agency, the agency shall
restore to complainant all leave used from April 8, 1994 through June 9,
1994, and any other attendant benefits lost during that time period. In
the alternative, if complainant is no longer employed by the agency, the
agency shall provide complainant back pay, with interest, for the period
April 8, 1994 through June 9, 1994, and shall additionally compensate
complainant for any other attendant benefits lost during that time
period.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall reimburse complainant one hundred dollars ($100)
for the cost of the medical examination, plus interest from the date of
payment (May 20, 1994) until the date of reimbursement.
3. The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the agency's discriminatory actions in this matter.<7> The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of his claim for compensatory damages. Within thirty (30)
days of its receipt of complainant's evidence, the agency shall issue
a final decision determining complainant's entitlement to compensatory
damages, together with appropriate appeal rights.
4. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
Rehabilitation Act.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
and the agency's decision regarding compensatory damages, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its General Mail Facility in Jackson
Mississippi, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty
(60) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The agency shall take
reasonable steps to insure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by
64 Fed. Reg. 37,644, 37,659-60 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency - not to the Equal Employment Opportunity Commission,
Office of Federal Operations - within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report
shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 29 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408)
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action." 29
C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or a
civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION.See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9 -18 (November 9,
1999). All requests and arguments must be submitted to the Director,
Office of Federal Operations, Equal Employment Opportunity Commission,
P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible
postmark, the request to reconsider shall be deemed timely filed if it
is received by mail within five days of the expiration of the applicable
filing period. See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �1614.604). The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until such
time as the agency issues its final decision on your complaint. If you
file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE
PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING
THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to
do so may result in the dismissal of your case in court. "Agency" or
"department" means the national organization, and not the local office,
facility or department in which you work. If you file a request to
reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you to
file the action without payment of fees, costs, or other security. See
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq .; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791,
794(c). The grant or denial of the request is within the sole discretion
of the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 11, 2000
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ________ which found that a
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., has occurred at the United States
Postal Service's General Mail Facility in Jackson, Mississippi.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
the individual affected by the Commission's findings on the basis of
disability, when the agency failed timely to accommodate him by assignment
to a light duty or other position, and when it required him to pay for
a fitness of duty examination. The agency shall therefore remedy this
discrimination by providing this individual with reinstatement, back pay,
and restoration of other attendant benefits. The agency will also provide
compensatory damages if proven, will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
______________________________
Date Posted: ___________________
Posting Expires: _______________
29 C.F.R. Part 1614
FOOTNOTES
Footnote 3
Footnote 4
Footnote 5
Footnote 6
Footnote 7
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3The collective bargaining agreement provides in pertinent part that
a request for permanent light duty shall be accompanied by a medical
certificate from a physician designated by the agency. Id. at Exhibit 7.
4Although complainant's request for permanent light duty was subsequently
denied, complainant's formal complaint does not challenge this action,
but rather only challenges the delay in granting his request for
temporary light duty, and the fact that he was required to pay for his
FFD examination. Accordingly, we are not presented with the issue of
whether or not the agency violated the Rehabilitation Act in denying
complainant's request for permanent light duty.
5Even if complainant was unable to perform the essential functions of
his then-current position, he would still be "qualified" if, with or
without accommodation, he could perform the essential functions of any
position which he could have held as a result of job restructuring or
reassignment. See Hawkins v. United States Postal Service, EEOC Petition
No. 03990006 (February 11, 1999).
6The SS asserts that "[l]imited duty is provided for workers on the
job, whereas light duty is for employees unable to perform duties due
to non-job related conditions. Work provided under light duty must be
within the craft and must be productive work." ROI Affidavit C at A-9.
7The Commission notes that this is not a case where the agency made
a "good faith effort" to reasonably accommodate complainant, thereby
insulating it from an obligation to award appropriate compensatory damages
based on the instant finding of discrimination under the Rehabilitation
Act. See Teshima v. United States Postal Service, EEOC Appeal No. 01961997
(May 5, 1998).